Bottlenecks at any layer of the Internet—physical, social, application, or content—create opportunities for the exercise of undue power over the flow of information and ideas online. Corporate forces menace both user privacy and free expression on the Internet. Market concentration lets powerful business leaders develop unprecedented digital dossiers on users. Such concentration also allows leading companies to pervasively shape culture and politics, elevating some voices and silencing others.
The privacy and First Amendment cases for net neutrality are compelling. But net neutrality’s opponents are inverting the debate by asserting their own rights to “free speech” and asserting a form of corporate privacy-trade secrecy. While Christopher Yoo’s theory of “architectural censorship” has not yet vindicated Internet Service Providers’ (ISPs) claims to expansive First Amendment rights, ISPs’ business alliances with search engines and other internet companies that monitor content may make their decisions sufficiently “speech-like” to attract protection from the current Supreme Court, thereby insulating ISP decisions from regulation and scrutiny. Classifying network management decisions as “trade secrets” could also hamper public scrutiny of and regulatory attention to ISPs’ actions. Corporate trade secrecy privileges would make it difficult for consumers to determine if their privacy rights have been violated. Corporate First Amendment protections would likely foil lawsuits (and even some regulation) designed to promote the public interest by ensuring fair, open, and neutral ordering of data flows online.
Legal argument may stop this inversion. First Amendment and trade secrecy doctrines, as applied to ISPs and seach engines, are vague, and there may be openings to establish new legal doctrines on this front that would promote the free flow of information online. But given Google’s success in advancing its legal interests, the recent collaboration between Google and Verizon in developing a “legislative framework” for network neutrality,[5] and the present composition of the Roberts Court, consumer advocates who care about individuals’ rights to privacy and free expression should start moving beyond the legal system to develop more transparent and open alternatives to increasingly unregulable networks of dominant online intermediaries.
